CSU17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 97
Federal Circuit and Family Court of Australia
(DIVISION 2)
CSU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 97
File number(s): MLG 1312 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 15 February 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority affirming a decision not to grant a Safe Haven Enterprise (sub-class XE790) visa – where Authority referenced superseded country information in its reasons – where it is contended that the Authority knew or ought to have known about the updated country information - whether the Authority failed to consider relevant considerations - erred in interpreting or applying the terms “real chance” and “well-founded fear of persecution” pursuant to ss.5H, 5J and 36(2)(a) and “real risk of significant harm” pursuant to s.36(2)(aa) of the Act - and/or was unreasonable in its findings given the updated country information.
PRACTICE AND PROCEDURE – application to adduce new evidence – where application to adduce evidence that existed before the hearing was made after conclusion of final hearing and judgment reserved – where parties to litigation had already suffered delay and expense on account of the interlocutory application - explanation not exceptional – interlocutory application dismissed.
Jurisdictional error not identified - application dismissed with costs.
Legislation: Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa), 65, 424A, 424AA, 437DA, 437DC, 437DD, 437JA, 499
Migration Regulations 1994 (Cth) reg 4.43(2)(a)
Public Services Act 1999 (Cth)
Ministerial Direction No. 84 – Consideration of Protection Visa Applications
Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62
CHP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1818
DIJ16 v Minister for Home Affairs [2019] FCA 1038
Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389
ETR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 632
F.Y.D Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Minister for Home Affairs vOmar [2019] FCAFC 188
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80
Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1
SZSZW v Minister for Border Protection [2015] FCA 562
Tickner v Chapman (1995) 57 FCR 451
Division: Division 2 General Federal Law Number of paragraphs: 119 Date of last submission/s: 23 August 2022 Date of hearing: 29 June and 23 August 2022 Place: Melbourne Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Mano Associates Counsel for the First Respondent: Mr J Barrington
Solicitor for the First Respondent: Sparke Helmore
Table of Corrections 27 February 2023 In paragraph 55, two references to the words “decision make” in the quotation have been corrected to show “decision maker”. 27 February 2023 In paragraph 56, the words “does not” have been corrected to show “it plainly did not”. 27 February 2023 In paragraph 56, the words “expressly operates” have been corrected to show “expressly operated”. ORDERS
MLG 1312 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CSU17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
15 February 2023
THE COURT ORDERS THAT:
1.Leave be granted to amend the application as accepted for filing on 7 June 2022.
2.The application in a proceeding to adduce further evidence be dismissed.
3.The amended application be dismissed.
4.The Applicant pay the First Respondent’s costs of the proceedings in the scale amount for the final hearing and the further interlocutory hearing in the total amount of $11,584.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
Introduction
The Applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The Authority affirmed a decision of a delegate of the First Respondent refusing to grant the Applicant a Safe Haven Enterprise (sub-class XE790) visa (protection visa).
For the reasons that follow, the application should be dismissed with costs.
Factual context
The Applicant in these proceedings is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival on 9 November 2012.
On a date that is not specified in the materials but accepted as before 4 February 2016, the Minister lifted the statutory bar under s.46A(2) of the Act thereby allowing the Applicant an opportunity to lodge an application for a protection visa and supporting documents.
On 4 February 2016, by email to the Department of Immigration and Border Protection (as it then was) (Department) sent by the Applicant’s migration agent, the Applicant applied for the protection visa. The email attached a Form 790B, Form 790C, Form 956 (appointment of migration agent), a Primary Application Information Service information sheet, an acknowledgment and agreement signed by the Applicant, an authorisation and lodgement receipt of the migration agent’s office, a copy of the Applicant’s birth certificate and two statements that articulated claims for protection (dated 27 January 2016, and 16 September 2013). On 24 May 2016, the Applicant’s representative provided identity documentation and a completed Form 790, Part C. On 4 July 2016, the Applicant’s representative provided a new 956 Form.
On 12 August 2016, the Applicant attended an interview with a representative of the Department. After the interview, on 19 August 2016, the Applicant’s representative supplied further information by email that attached: post-interview submissions; a UK Home Office report dated May 2016, two articles from internet sources and a family details form. Those post-interview submissions cited various sources of “country information” including a Department of Foreign Affairs and Trade Country Information Report, Sri Lanka 18 December 2015 (2015 DFAT Report).
On 2 November 2016, the delegate decided to refuse the visa application. The delegate accepted some but not all of Applicant’s claims.
On 9 November 2016, the delegate’s decision was referred to the Authority for review.
On 29 November 2016, the Applicant’s representative supplied the following further information which was not before the delegate at the time of the delegate’s decision: a further statement of the Applicant dated 28 November 2016; a death certificate of his mother, his sister’s marriage certificate, various photographs, family registration records, and a bank book record with transactions in 2007.
On 16 June 2017, the Authority made a decision affirming the delegate’s decision and provided a statement of reasons for that decision (Reasons).
Authority’s decision
The Authority outlined the material to which it had regard and provided reasons for accepting and not accepting certain additional information that was not in the protection visa application or raised at the interview before the delegate but had been provided by the Applicant’s representative to the Authority: Reasons, at [4] to [9].
The Reasons record the Authority’s impressions of the evidence including the acceptance of some claims and rejection of others, where the Authority considered them to be unconvincing or inconsistent: for example, Reasons at [26], [27] and [30].
In relation to the Authority’s refugee assessment, the findings of fact on the evidence and consideration of the statutory criterion are recorded at [11] to [59]. Of those Reasons, the Applicant’s amended grounds of review and the First Respondent’s response placed emphasis on the following:
·at [17], that the Authority accepted the Applicant’s claims: that he and many other auto drivers were questioned by the Sri Lankan Army (SLA) about their involvement with the Liberation Tigers of Tamil Eelam (LTTE);
·also at [17], that he was detained at an SLA camp in March 2007, interrogated about his association with the LTTE and in particular with two LTTE cadres, tortured and released on an ongoing reporting condition;
·also at [17], its acceptance of the Applicant’s claim that he has ongoing hearing and back problems as a result of the torture in the SLA camp;
·at [19] and [20], that the Applicant did not claim to have been arrested, detained for a long period of time or charged with any offence relating to the LTTE, terrorism or Tamil separatists – either during the war or at any other time - and therefore, with regard to country information, that the authorities did not suspect and do not regard the Applicant as being a person with links to the LTTE or an advocate of Tamil separatism;
·at [23] and [24], that the Applicant had exited Sri Lanka without difficulty and therefore authorities would not think he had departed with the assistance of the LTTE and were not searching for the Applicant when they interviewed his mother and sister about male relatives;
·at [26], that the Applicant’s claimed living arrangements in the period from 2009 until he travelled by boat to Australia were vague, generalised, lacking in detail and unconvincing;
·at [30] and [31], that the Applicant’s ability to travel to India and return to Sri Lanka without difficulty to care for a relative undermined his claim that he absconded from reporting requirements in 2007 and was in hiding from Sri Lankan authorities from August 2007 until August 2012 – such assessment was found to be further supported by the completion of a family registration form in 2011 without difficulty;
·at [32], that the Applicant did not abscond from his home area in 2007 while on reporting requirements and without informing the Sri Lankan authorities;
·at [34], that the Sri Lankan authorities do not have an ongoing interest in the Applicant due to his prior association with the LTTE, because he lived in a previously LTTE controlled area; he departed without permission in 2007 and while required to report to the SLA;
·at [35], that the Applicant is not perceived by the Sri Lankan authorities to have links with the LTTE, or to be an advocate for Tamil separatism or is an LTTE supporter, and is not alleged or was involved in terrorism;
·at [36], that the Applicant, as a Tamil originating from an area previously under LTTE control, does not have the profile identified by the United Nations High Commissioner for Refugees (UNHCR) as giving rise to a risk of harm;
·at [40], that the Applicant does not claim to have been an LTTE member and is not perceived to have been an LTTE member by the Sri Lankan authorities and is not perceived to be politically active;
·at [42], that the chance of the Applicant facing serious harm now and in the foreseeable future in Sri Lanka because of his Tamil ethnicity is remote;
·at [43], its finding that the Applicant did not face a real chance of harm then or in the foreseeable future because of his claimed characteristics of being Tamil, perception of political opinion as an LTTE supporter, membership of a particular social group or having fled his home area without permission of the army;
·at [44], that the Applicant’s claims were always made with reference to the SLA and security forces;
·at [46], did not accept that the Applicant did not lodge a formal complaint with the Human Rights Commission about his detention, interrogation or torture or that he identified specific people who mistreated him;
·at [48], the chance of the Applicant being harmed by his SLA interrogators or anyone from the SLA is remote and that the Applicant’s fears of persecution in this respect are not well-founded;
·at [51]-[53], that the Applicant, upon return to Sri Lanka will be held on remand for a number of hours or days for identity, character and security checks but there is no evidence that the Applicant could not pay any fine or bail that is imposed due to his illegal departure;
·at [54], its consideration of the 2015 DFAT Report which the Authority considered did not support a finding that failed Tamil asylum seekers are imputed with a pro-LTTE opinion or are suspected to have been involved in supporting the LTTE merely because they are Tamils and have sought asylum and noted DFAT’s assessment that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act;
·at [55], noted the country information articles of 3 May 2015 and May 2016 and similar sources noted by the delegate which referred to detention of Tamils who were former LTTE members and summarised the reasons for its state of satisfaction that the Applicant is not perceived by the Sri Lankan authorities as being a former member or cadre of the LTTE or a person with links to the LTTE or imputed to support the LTTE;
·at [56]-[57], that the Applicant did not have a profile of a politically-active person or anti-government activist or Tamil separatist, did not claim to have any outstanding criminal charges and would not be detained for a lengthy period or subjected to serious or significant harm on return as a person who departed illegally but would be charged and fined for his illegal departure which is does not amount to serious harm; and
·at [58], that the procedures under which the Applicant as a returnee would be dealt with and any penalties he would be subjected to would be applied in a non-discriminatory way under a law of general application which does not constitute persecution for the purposes of the Act.
Ultimately the Authority concluded that, having assessed the Applicant’s claims individually and cumulatively, they did not amount to a real chance of serious harm in Sri Lanka and the Applicant does not meet the requirements of the definition of “refugee” in s.5H(1) and the Applicant does not meet s.36(2)(a) of the Act: Reasons, at [59] and [60].
In relation to the Authority’s complementary protection assessment, the Authority’s consideration proceeded on the basis of the earlier findings of fact and is found at [61] to [66]. Of those Reasons, the amended grounds of review were focussed on that at [64]. There, the Authority noted that the “real risk” test imposed the same standard as the “real chance” test applicable to the assessment of “well-founded fear” and confirmed that, having found that the Applicant does not face a real chance of serious harm in relation to his claims the Applicant also does not face a real risk.
At [65], the Authority acknowledged that the Applicant is a Tamil who departed Sri Lanka unlawfully and will be returning as a failed asylum seeker. The Authority then stated it had reached the state of satisfaction that the Applicant does not face a real risk of being arbitrarily deprived of his life; of the death penalty; of being subjected to torture or cruel or inhuman treatment or punishment; or degrading treatment or punishment. Further, that the procedures the Applicant would go through on return will not involve significant harm.
At [67], the Authority concluded that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the Applicant will suffer significant harm and the Applicant does not meet s.36(2)(aa) of the Act.
Proceedings before this Court
The Applicant commenced the current proceedings for judicial review on 21 June 2017, by lodging an application together with an affidavit exhibiting a copy of the Reasons but adducing no other evidence.
On 2 June 2022, the Applicant filed an amended application which was not opposed.
The matter proceeded to hearing before the Court as presently constituted on 29 June 2022 and both parties were represented by Counsel. The First Respondent sought to amend its name to Minister for Immigration, Citizenship and Multicultural Affairs which was not opposed and was granted. Reasons for judgment were reserved on that occasion.
On 22 July 2022, an application in a proceeding was made by the Applicant seeking leave to adduce further evidence pertaining to the first ground of the amended application. That application was heard on 23 August 2022. The parties were content that the application in a proceeding be determined with the substantive matter.
grounds of review
By the amended application, the Applicant pressed grounds of judicial review in the following terms:
1.The Second Respondent (“the Authority) fell into jurisdictional error in failing to consider relevant considerations.
Particulars
The 2017 DFAT Report
(a) The Authority was obliged by Ministerial Direction Number 56 of 21 June 2013 under s 499 of the Migration Act 1958 ("the Act") to take into account, where relevant, a country information assessment prepared by the Australian Department of Foreign Affairs and Trade ("DFAT') expressly for protection status determination processes, and but the Authority did not take into account the most recent country information assessment prepared before it made its decision, namely DFAT Country Information Report Sri Lanka 24 January 2017 ("the 2017 DFAT report").
(b) Further to particular (a) to this Ground, the Authority did not consider and determine whether to consider the 2017 DFAT report pursuant to section 473DO of the Act.
(c) Further or in the alternative to particular (b) to this Ground, the Authority did not consider the 2017 DFAT report.
Consideration of cumulative factors
(d) The Authority accepted:
17.I accept the applicant's claim that he and many other auto drivers were questioned by the SLA about their involvement with the LTTE. I accept that the applicant was detained in March 2007 at an SLA camp ..., interrogated about his association with the LTTE and in particular with two LTTE cades (sic), tortured, and released after two days on condition that he collaborate and report every Saturday to the camp. I accept that the applicant has ongoing hearing and back problems as a result of the torture.
(e) The Authority also accepted that there were some allegations of torture and mistreatment of returnees, and of the arrest and torture of persons connected or perceived to be connected with the LTTE. (Authority's reasons, CB 242-243, [54]-[55]: cf. the delegate's reasons, CB 85 and references there cited.)
(f) The Authority accepted also that there would be investigations made by the Sri Lankan authorities on the return of the Applicant to Sri Lanka as an illegal emigrant and a failed asylum seeker. and it regarded it as relevant (pursuant to country information - but not the 2017 DFAT report) whether he may be perceived as "a person with links to the LTTE or imputed to support the LTTE" (CB 240, [43]: CB 243, [55]: CB 244, [64]).
(g) In the circumstances set out in Particulars (d) to (f) to this Ground, and in determining whether the Applicant may have a real chance of suffering persecution or significant harm, the Authority did not consider whether such a chance or risk or harm may arise from the combination of past suspicion and interrogation about LTTE links, and future investigation on arrival which may reveal the past suspicion.
Risk of harm in detention
(h) Further or in the alternative to particulars (d) to (g) to this Ground, the Authority failed to consider with an actual intellectual engagement the question whether the Applicant had a real chance of suffering persecution or significant harm by torture or other serious or significant harm while in detention or otherwise under the control of the Sri Lankan authorities, on his return to Sri Lanka. This question was squarely raised by the referred material, the Applicant's evidence, his submissions, and the findings of the Second Respondent a well as the 2017 DFAT Report. (Authority's reasons, CB 242-243, [54]-[55]: cf. the delegate's reasons, CB 85 and references there cited.)
2.The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
(a) The Authority erred in interpreting or applying the terms "real chance" and "well-founded fear of persecution" pursuant to sections 5H, 5J and 36(2)(a) of the Act and the term "real risk of significant harm" pursuant to section 36(2)(aa) of the Act, shown by its findings that he did not have such a real chance or real risk of harm in detention on return to Sri Lanka. despite the information before it and available to it, when there was much evidence of torture and other abuse of persons in detention or under the power of the Sri Lankan authorities in the material before or available to the Authority, including the including the 2017 DFAT report. (Authority's reasons, CB 242-243. [54]-[55]: cf. the delegate's reasons, CB 85 and references there cited.)
3.The Authority fell into jurisdictional error in that it was unreasonable.
Particulars
(a) Further or in the alternative to particular (a) to Ground 2, It was not reasonable for the authority not to find that the Applicant was at risk of persecution or significant harm in detention or in prison on his return, given the material before it or available to it relating to abuse of human rights and torture. (Authority's reasons, CB 242-243, [54]-[55]: cf. the delegate's reasons, CB 85 and references there cited.)
Statutory framework
The criterion for the grant of a protection visa is confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provide that “a” criteria for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
Division 3 of Part 7AA of the Act governs the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, includes a decision to refuse to grant a protection visa to a “fast track applicant”.
Part 7AA of the Act is arranged in eight divisions comprising ss.473BA-473JF.
Division 1 of Part 7AA commences with a self-described “simplified outline” at s.473BA including that Part 7AA provides a limited form of review in relation to the decisions known as fast track reviewable decisions and that decisions of this kind must be referred by the Minister to the Authority as soon as reasonably practicable after a decision has been made. A fast track applicant cannot apply for review directly to the Authority and decisions of this kind are otherwise generally not reviewable under the Act. Further, in conducting its review, that the Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3. The Authority does not hold hearings and is required to conduct its review on the papers save that, in exceptional circumstances, it may consider new material and may invite a referred applicant to provide, or comment on, new information.
In Division 2 of Part 7AA, s.473CB provides that the Secretary must give to the Authority certain review material and must do so at the same time as, or as soon as reasonably practicable after, referring the decision to the Authority.
Division 3 of Part 7AA, which concerns the subject, “Conduct of review”, is arranged in three subdivisions comprising ss.473DA-473DF.
Section 473DA provides that Division 3 (among two other provisions which are presently immaterial) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provides that, subject to Part 7AA, the Authority must review a fast track reviewable decision that has been referred to it by considering the review material provided to it and must do so “without accepting or requesting new information” and “without interviewing the referred applicant.”
Subdivision C of Part 7AA, most relevantly at ss.473DC – 473DD, concerns how the Authority may “get” and “consider” new information that was not before the Minister when the decision was made under s.65. This application is concerned with those obligations at ss.473DC and 473DD.
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
By s.473EA of the Act, a decision of the Authority on Part 7AA review must be accompanied by a written statement which sets out both “the decision” on review and “the reasons for the decision”.
At the time of the Authority’s Reasons, the Act (since amended) also provided that the Minister may (as distinct from must) give written directions about how to exercise a power under the Act. Relevantly, to the extent that those directions were about the performance of those functions or the exercise of those powers: s.499 of the Act (as it then was).
Consideration
There is considerable overlap in the three grounds relied upon by the Applicant. Each takes issue with the fact that a Department of Foreign Affairs and Trade Country Information Report, Sri Lanka 24 January 2017 (2017 DFAT Report) was not referenced in the Authority’s Reasons. The author of the 2017 DFAT Report expressed its contents as an updated report that “replaces” the previous 2015 DFAT Report: 2017 DFAT Report at 1.5.
The first ground contended that this constituted a failure to take into account a relevant consideration (among two other considerations said to be relevant). The second ground contended that the Authority erred in interpreting or applying the law as demonstrated by its conclusion that the statutory criterion were not met despite the material that was available to and before it namely the 2017 DFAT Report. The third ground was plead as well as or in the alternative to Ground 2 and essentially contended that the Authority’s findings that the Applicant was not at risk of persecution or significant harm in detention or in prison on his return were unreasonable again given the material that was available to and before it.
Whether to allow the late application to bring new evidence
It is useful to deal first with the application in a proceeding which, if allowed, may have a bearing on the assessment of each of the three grounds of review.
By this application the Applicant sought to introduce evidence of an extract of a decision of the Authority which referred to the 2017 DFAT Report and was delivered on 5 May 2017 (Decision Extract of 5 May 2017).
It is not contentious that this application to introduce new evidence, made after the conclusion of the final hearing and judgment was reserved, is unusual and ought only be granted in exceptional circumstances: Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1. There was no contest about the principles that the First Respondent drew to the Court’s attention as being applicable to the Court’s assessment of the interests of justice in an application of this kind, citing the decision of White J in F.Y.D Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 at [32]:
•the public interest (and the interest of the particular parties) in litigation being conducted efficiently and expeditiously;
•the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing;
•the significance of the proposed new evidence and submissions in the context of the trial;
•the explanation for the evidence not having been led at the trial;
•the likely prejudice to the opposing party if the application is allowed;
•the potential detriment to the applying party if the application is refused, and;
•any delay by an applicant in seeking leave to reopen.
The public interest in the finality of litigation and in ensuring that litigants will present all evidence and submissions at one hearing would ordinarily weigh against the grant of such application. In the present case, the matter has already suffered some delay necessitated by a further hearing, at which the parties argued the merits in the event that leave to make the application was granted. A decision now to allow this application would not delay matters further.
Nonetheless, there was insufficient explanation as to why the evidence was not lead at the trial. The only reason advanced for seeking to adduce the evidence of the Decision Extract dated 5 May 2017 was that the Applicant’s Counsel had subsequently identified its existence – it was not explained how or why it was only just then discovered notwithstanding that the record itself had been in existence since some years earlier. Without more, the belated identification of material that was in existence at the time of the hearing is in my view neither an exceptional nor a reasonable explanation. For completeness, the decision of this Court in ETR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 632 (ETR17) involved the same reviewer and the new evidence sought to be adduced arose during the course of (rather than after the conclusion of) the hearing.
Further, other than the matter of costs and as will appear from the reasons that follow in relation to Ground 1 (particulars (a) to (c)), I am not persuaded that the Applicant will suffer any particular prejudice or detriment if the application is refused.
I am minded to dismiss the application in a proceeding to adduce evidence of the Decision Extract dated 5 May 2017.
Ground 1 – failure to consider relevant considerations and new information
As regards particulars (a) to (h) of this first ground, the Applicant contended that three factors of relevance ought to have been and were not considered:
(a)the 2017 DFAT Report;
(b)the cumulation of certain factors the Authority had found; and
(c)the question whether the Applicant had a real chance of suffering persecution or significant harm by torture or other serious or significant harm while in detention or otherwise under the control of the Sri Lankan authorities, on his return to Sri Lanka.
At the outset, it is important to bear in mind that the Authority was required to conduct a “de novo” review of the Applicant’s application for a protection visa. This required it to consider the Applicant’s claims to face a real chance of serious harm or serious risk of significant harm on return to Sri Lanka, by reference to the “review material”: s.473DB(1).
It is not contentious that such consideration must be within the bounds of legal reasonableness and must be proper, genuine and realistic: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021), [25]-[27].
The Applicant also pointed to a series of authorities for the propositions that the Authority must consider each necessary and relevant consideration and integer of the claim, and must consider each material question of fact squarely raised by the material before the Authority: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason J at [19]; SZSZW v Minister for Border Protection [2015] FCA 562 per Perry J at [13]-[18]; Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ); see also SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 at [29] per Madgwick and Conti JJ; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (NABE (No 2)) at [58].
Particulars (a) to (c) – the 2017 DFAT Report
It was not contentious that the 2017 DFAT Report was not referenced in the Reasons and it was accepted that there is no general obligation on the Authority to get or consider “new information” that was not before the delegate – confined by the statutory criteria (s.473DC) and being limited to “exceptional circumstances” (s.473DD), respectively.
The Applicant was understood to contend that the Court should nonetheless find that, in conducting its review and deciding whether to grant or refuse to grant the protection visa under s.65 of the Act, the Authority was obliged to:
(a)first note the existence of the 2017 DFAT Report, given its actual or constructive knowledge of the updated report; and further to
(b)get the report pursuant to its power under s.473DC(1) (although not featured in the pleadings, the Applicant was understood to so contend in argument); and then to
(c)find that there were “exceptional circumstances” as to consider the report under s.473DD(a).
The First Respondent did not seek to argue that the 2017 DFAT Report was considered at all. It contended that it was open to the Court to infer that the 2017 DFAT Report was not before the Authority for two reasons similar to that in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (APH17). Relatedly, that the Applicant can not show that the Authority had any actual or constructive knowledge of the 2017 DFAT Report. In any event, it was not necessary to go that far because there was no obligation on the Authority to get or consider the 2017 DFAT Report as the Authority is not bound by the ministerial direction on which the Applicant relied in support of this claim.
Was the 2017 DFAT Report before the Authority or within its constructive knowledge?
The 2017 DFAT Report was published on 24 January 2017. That is, some four and a half months before the Authority’s decision was delivered (on 16 June 2017).
The Authority’s Reasons variously referred to the 2015 DFAT Report but did not refer to the 2017 DFAT Report. The Authority’s Reasons do not reveal any consideration of whether to get the 2017 DFAT Report under s.437DC or whether to consider it under s.473DD.
There was no suggestion that the Applicant gave the 2017 DFAT Report to the Authority or referenced it at interview or in his written submissions. To the contrary, it is apparent that the review materials before the Authority (including recording of the delegate’s interview and the post-interview written submissions of the Applicant) pre-dated the publication of the 2017 DFAT Report.
To the extent that it was contended that Ministerial Direction No. 56 (since superseded by Direction No. 84 – Consideration of Protection Visa Applications (Direction 84), made pursuant to s.499 of the Act) demonstrated: an obligation to note the updated report, that the updated report was before the Authority and/or within its constructive knowledge, then that submission(s) is rejected.
Direction 56 (in force at the relevant time) was not before the Court. Direction 84 as in force at the time of the hearing was before the Court and relevantly provided that:
Clauses
This Direction applies to a decision maker performing functions or exercising powers under section 65, 414 or 415 of the Act when considering an application for the grant of a Protection visa and when reviewing a decision to refuse to grant a Protection visa. This direction is subject to the Act and Regulations and other applicable laws.
[…]
Where the Department of Foreign Affairs and Trade has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
Accepting that a direction in those exact terms was in force at the relevant time, it plainly did not have the binding force of a statute and expressly operated subject to the Act, Regulations and other applicable laws.
The Australian Public Sector (APS) Values contained in s.10 of the Public Service Act 1999 (Cth) are, in summary: committed to service, ethical, respectful, accountable, and impartial. Whether there has been compliance with the APS Values binding on a public servant in a decision making role might properly be a matter for another forum. For present purposes, the APS Values would not operate to enable the inference sought to be drawn.
Similarly, in my view, there is no basis to conclude that the Administrative Appeals Tribunal whether through its greater resources or joint administration or otherwise could be inferred to have shared its knowledge with the Authority.
As the Court considered in APH17 at [56]-[57], it would here appear unlikely that the Authority’s reviewer would refer to the 2015 DFAT Report if the updated 2017 DFAT Report was before them or considered relevant.
Without more and in the particular circumstances of this application, there is insufficient basis to draw an inference that the Authority had the 2017 DFAT Report before it or that the 2017 DFAT Report was within the Authority’s constructive knowledge. Rather, on what is before the Court, the inference can be drawn that the 2017 DFAT Report was not before the Authority.
For completeness, even if the interlocutory application to adduce the Decision Extract of 5 May 2017 were allowed, it would not alter my conclusion. The Applicant essentially contended that the value of the Decision Extract of 5 May 2017 was that it would establish that the Authority had “constructive knowledge” of the updated 2017 DFAT Report. In this case, the evidence that has not been allowed would establish nothing more than that the updated country information was received by a different reviewer in the context of a different application. It may be accepted that updated country information is a more generically applicable category of evidence than evidence of an individual applicant’s family history or experiences. Nonetheless, in my view, the contention that the Authority ought be taken or inferred to have “constructive knowledge” on account of material before different reviewers determining different applications ought be rejected.
For completeness, the decision of this Court in ETR17 involved the same reviewer. Those factual circumstances are not apt to the present case. And, even in the factual circumstances of ETR17, the Court was not persuaded that it should be inferred that the updated DFAT report was before the Authority or that it had constructive knowledge of the updated report in order to then conclude that there was an obligation on the Authority to get “new information” in the form of an updated DFAT report.
I conclude that the Authority did not have the 2017 DFAT Report before it and did not have constructive knowledge of the 2017 DFAT Report.
Was the Authority obliged to get the 2017 DFAT Report under s.473DC?
Section 473DC was not expressly cited in the pleadings but nonetheless was understood to feature in the Applicant’s argument.
The provision for getting new information under s.473DC is expressed in discretionary terms as distinct from mandatory (“may” not “must”). It does not constitute a duty on the Authority to get, search for, request or accept any new information that was not before the Minister in any circumstances. Further, the Authority is under no obligation to express its reasons for deciding whether to exercise its discretion to get new information under s.473DC (if it were considered at all): APH17 at [58] citing BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 at [40].
A further difficulty arises where, as here, the new information is not established as being either before the Authority or within its constructive knowledge.
It did not appear to be contended but for completeness it is not known whether the updated 2017 DFAT Report was not before the Authority as distinct from being the case that the Authority did not consider it relevant. If it were the former then, as already eluded, some legitimate criticism may be drawn from the failure of the Authority to consider whether updated DFAT country information was produced (and the representative’s failure to raise it) in the months between closing of submissions and delivery of the Reasons. Nonetheless, under the current statutory regime it remains the case that a decision-maker is not under an unqualified obligation to search out the most recent country information or DFAT reports: CHP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1818 at [54].
I conclude that the Authority was not obliged to search for or get the 2017 DFAT Report under s.473DC of the Act.
Was the Authority obliged to consider the 2017 DFAT Report under s.473DD?
The ability for the Authority to consider new information under s.473DD requires the referred applicant to propose or give new information to the Authority (among other statutory criterion): s.473DD(b) of the Act.
It follows that, because the 2017 DFAT Report was not proposed or given to the Authority by the Applicant, at least one pre-condition of the exercise of s.473DD does not apply.
I conclude that the Authority was not obliged to consider new information in the form of the 2017 DFAT Report.
Was it material?
Even if the Applicant could establish that an obligation did exist such that the Authority was obliged to get or consider the 2017 DFAT Report – it would be necessary to demonstrate that the failure to consider the 2017 DFAT Report was material to the outcome in the Applicant’s case.
The Applicant drew the Court’s attention to the following two paragraphs of the updated 2017 DFAT Report which did not appear in the 2015 DFAT Report:
4.15 DFAT is also aware of reported instances of torture carried out by the police. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security.
4.16 In October 2016, the Human Rights Commission of Sri Lanka (HRCSL) submitted a report to the UN Committee Against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that torture is used during interrogation and arrest and is used regardless of the nature of the suspected offence. A total of 208 torture complaints were received by the HRCSL as at 31 August 2016, compared to 600 in 2013. The geographic locations of torture reports are spread across Sri Lanka, with the most being reported in Colombo.
The following paragraphs provide additional context:
4.17 Evidence obtained through torture is generally inadmissible in courts in Sri Lanka. However, for suspects held under the Prevention of Terrorism Act, all confessions obtained by officers at or above the rank of Assistant Superintendent of Police are admissible in court. Victims of torture can complain to the Human Rights Commission of Sri Lanka or directly to the Supreme Court about a violation of their fundamental rights. Disciplinary action can be taken when complaints are made against the police or prison officers, but there have been few recent examples of this.
4.18 DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further asses that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.
4.19 DFAT assesses that in cases where police are alleged to have mistreated or tortured an individual, such practices generally reflect low capacity, lack of training and due process in arrest and detention procedures, and poor policing methods that focus on extracting confessions rather than undertaking thorough investigations.
4.20 Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police. The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.
It may be accepted that the 2017 DFAT Report is a more current source of country information than the 2015 DFAT Report.
Both reports contained an assessment of the likelihood of torture for all persons in Sri Lanka regardless of their ethnicity or status as a returning asylum seeker and both reports concluded risk in this respect. The 2015 DFAT Report referred to credible reports of torture carried out by Sri Lankan security forces; whereas the 2017 DFAT Report referred to reputable organisations having reported instances of torture carried out by the police.
Both reports contained a specific assessment of the likelihood of torture or mistreatment of asylum seekers returning to Sri Lanka. Both reports noted difficulty in verification of such reports. The updated 2017 DFAT Report assessed the risk of torture or mistreatment for the majority of returnees as low and continuing to reduce.
Important to the Authority’s conclusions were its findings that: the Applicant did not claim to be a former LTTE member; the Applicant had not claimed any personal threats or harm by armed groups associated with government and who act with impunity; and was not a person of interest to the Sri Lankan authorities or in any greater risk category than any other returning asylum seeker. The Applicant was also found to have departed, returned to and departed Sri Lanka again without difficulty in the period following his release from the SLA camp. In the circumstances of those findings specific to the Applicant’s profile, the parts of the updated report relied on by the Applicant in support of this ground are immaterial and the differences between the two reports not of substance in the context of the Authority’s findings in relation to the Applicant’s circumstances.
Particulars (d)-(g)
The essence of this claim is that the Authority did not consider its own findings that the Applicant was tortured in the past and interrogated about suspected links to the LTTE combined with its acceptance of the risk of future investigation and ongoing risk of torture and harm to persons suspected as connected with the LTTE. Specifically, those findings are at [17], [43], [54], [55], [64] of its Reasons.
The Applicant was also understood to contend that, because the Applicant had raised his ongoing concern about what the Sri Lankan authorities might do on his return, the Authority was required to but did not take this into consideration.
The Applicant relied on the case of NABE (No 2) as authority for the proposition that the Authority is required to consider any question squarely raised on the material. Although that case concerned a Part 7 decision under the Act, it was submitted that the principle applies in so far as what might happen to the Applicant upon his return is a question raised in the material which should have been considered by the Authority.
The Applicant acknowledged the reference to cumulative consideration in the Reasons (at [59] of the Authority’s Reasons). However, it was contended that a finding that the Authority considered the cumulative effect of the factors in question was not available on a fair reading of the Reasons.
I do not discern a failure to take into account a relevant consideration as plead in this respect. As earlier referenced, the Authority relied on the country information that was before it which distinguished risk for returning asylum seekers with LTTE links or suspected links, high- and low-profile former LTTE members from that of the general population.
The Authority considered the Applicant’s profile based on the country information that was before it. That is, including the UNHCR assessment of a profile that would give rise to a risk of harm. The Applicant did not claim to have any past LTTE membership. The Authority found he is not perceived by the Sri Lankan authorities to have links with the LTTE or to be an advocate or LTTE supporter.
Against this important context, the Authority’s Reasons disclose that consideration was given to what might happen to the Applicant as a returned illegal emigrant and failed asylum seeker. It contemplated the possibility of detention, the likely duration of such detention, and the likelihood of fines or charges which the Applicant had not claimed he could not pay.
The Authority’s Reasons also expressly disclose the reviewer’s consideration of country information and cumulative factors. It was the finding as to the Applicant’s profile that underscored the subsequent findings about risk of persecution and chance of serious harm.
In my view, the Authority considered the relevant factors including the cumulation of those to the extent relevant. I do not identify error as contended.
Particular (h)
Particular (h) was argued further or in the alternative to particulars (d) to (g) of Ground 1.
The Applicant asked the Court to find that the Authority failed to consider with “an active intellectual engagement” whether the Applicant had a real chance of suffering serious or significant harm while in detention upon his return and this was a jurisdictional error based on the questions squarely raised on the material before the Authority. Further, that the Authority did not “grapple with” important divisions in the assessments between DFAT and UNHCR (as noted in the 2017 DFAT report at paragraph 4.15).
The nature of the “actual intellectual engagement” required of an administrative decision-maker was considered by the Full Court in Minister for Home Affairs vOmar [2019] FCAFC 188 at [36] and drawn from the statement by Kiefel J in Tickner v Chapman (1995) 57 FCR 451 at 495:
The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires the Minister to have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say.
In Plaintiff M1/2021 at [26], the plurality (Kiefel CJ, Kean, Gordon and Steward JJ) cautioned against use of labels like “active intellectual process” and emphasised that:
Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
Without detracting from the importance of the principle which requires administrative decision-makers to engage properly with the claims and evidence before them, the further point made by the High Court in Plaintiff M1/2021 and earlier authorities is that the requisite level of engagement by the decision-maker with “the representations must occur within the bounds of rationality and reasonableness” and, at the same time, “what is necessary to comply with the statutory requirement of a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement –the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations”: Plaintiff M1/2021 at [25] (footnotes omitted).
It may be accepted that the Applicant’s claim of fear about what might happen to him upon his return to Sri Lanka was a reasonably central part of the Applicant’s case. However, on a fair reading of the Reasons, it is not correct to suggest that no consideration was given to the treatment the Applicant would likely face upon being detained on his return to Sri Lanka. The Authority considered detention, for a short time, and a bail charge to be likely, if not certain, outcomes for the Applicant upon his return. However, against the important context of the reviewer’s findings as to the Applicant’s profile, any risk of the Applicant suffering serious harm was found to be remote, not distinct from other returnees on account of his claimed attributes, and therefore not attracting the definition of a real chance of serious harm or a real risk of significant harm.
The contended division between the 2017 DFAT Report and the UNHCR report would appear to be a belated contention that was not put with any clarity before the Authority and not therefore a matter the Authority was required to appropriately grapple with: Plaintiff M1/2021; DIJ16 v Minister for Home Affairs [2019] FCA 1038 at [37] per Mortimer J.
The Applicant perhaps understandably disagreed with the Authority’s interpretation of the country information. However, mere disagreement does not amount to jurisdictional error. This is not a case where the Authority failed to consider a claim made by reference to specific country information. Rather, the Authority did consider the claims and the country information that was before it and came to a conclusion contrary to that advanced by the Applicant.
Resolution of Ground 1
For the above reasons, there is no identifiable failure to take a consideration particularised at (a) to (h) into account as a “relevant consideration”. Ground 1 is not made out.
Ground 2 – erroneous interpretation of law
By the second ground of review, the Applicant asked the Court to find that the Authority erred in its application of the tests at ss.36(2)(a) and (aa) despite the information before it and available to it.
The particulars to this ground disclosed the contention in terms that the Authority had erred in its interpretation or application of the terms:
(a)“real chance” and “well-founded fear of persecution” pursuant to ss.5H, 5J and 36(2)(a) of the Act; and
(b)“real risk of significant harm” pursuant to s.36(2)(aa) of the Act.
In each case, said to be “shown” by the Authority’s conclusory findings that the Applicant did not have such a real chance or real risk of harm in detention on return to Sri Lanka despite the information alleged to have been before and available to the Authority - including the 2017 DFAT Report, among other evidence.
The particulars also sought to compare the Authority’s findings at [54], [55] and [56] with parts of the delegate’s reasons.
In support of this ground, the Applicant characterised the Authority’s findings as accepting of a level of risk of persecution or significant harm to people perceived to have links to the LTTE (Reasons at [54]-[56] and [64]-[65]). The Applicant argued this was sufficient to establish the “real chance” threshold and a claim for protection, citing Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) CLR 379 per Mason CJ at [12]; McHugh J at [20]. The Applicant emphasised that only a small probability was required.
The First Respondent contended that this ground was an invitation to the Court to engage in an impermissible merits review, citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]. Further, the First Respondent reiterated that the Authority had found that any risk upon return arose from the existence of a real or imputed connection to the LTTE and the Authority had correctly concluded that the Applicant did not have such a profile as to attract this risk.
In resolution of the first ground, it was concluded that the 2017 DFAT Report was not before or within the constructive knowledge of the Authority and there was no statutory obligation to get or consider it. It follows that it was not inappropriate that the Authority, who did not necessarily have the 2017 DFAT Report before it, did not consider it.
By the remainder of this ground, the Applicant essentially sought to persuade the Court that the Applicant’s claims of harm on return to Sri Lanka were meritorious by reconsidering the material before the Tribunal (including with regard to the first instance decision of the delegate).
As earlier identified, the task of this Court on judicial review is confined by the statute and it is not for this Court to engage with the merits of the application. The authorities overwhelmingly establish that the choice and assessment of the weight to attribute to the country information before the Authority were matters for the Authority to consider in conducting its de novo review. Accepting that the threshold for “a real chance” of persecution or a “real risk” of significant harm is low, there is no basis to infer an error in application of the relevant thresholds on what is before this Court.
I am not persuaded that this ground identifies any jurisdictional error within jurisdiction of this Court.
Resolution of Ground 2
For the above reasons, the second ground is not made out.
Ground 3 – legal unreasonableness
This ground was plead further or in the alternative to Ground 2. The Applicant’s submissions were transparent in identifying overlap between both this third ground and Grounds 1 and 2.
The third ground also sought to challenge the Authority’s conclusion in dismissing the claims that the Applicant was at risk of persecution or significant harm while in detention and being investigated on return to Sri Lanka again on account of the information that was before and/or available to the Authority.
In terms of the country information that was before the Authority, the Applicant contended the conclusions as to ss.36(2)(a) and 36(2)(aa) were not “reasonably open” to the Authority. In relation to the 2017 DFAT Report that was not referenced in the Reasons, the Applicant contended that the Authority’s failure to get and consider this information was legally unreasonable, particularly given the Ministerial direction made under s.499 of the Act, and compromised the review of the risk of harm to the Applicant.
The Applicant highlighted that the relevant statutory context to be regarded is not just the procedural proscriptions of Part 7AA of the Act but also the substantive provision at ss.36(2)(a) and 36(2)(aa).
The First Respondent contended that the third ground largely re-agitates the arguments made in the earlier ground(s) and should be dismissed. It also noted that the Applicant’s claim that the Authority could not disregard that some fresh investigation may reveal some old suspicion is a claim of “pure speculation” which was not made by the Applicant and, regardless, the Authority did not accept the Applicant to have a relevant profile to attract such risk or harm.
It is not controversial that an unreasonable failure to exercise a power pursuant to Division 3 of Part 7AA can render invalid a purported performance by the Authority of the duty imposed on it by s.473CC to conduct a review and either affirm or remit the decision under review: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 per Gageler, Keane and Nettle JJ at [21].
The relevance of both the procedural and substantive context as contended by the Applicant may be accepted. However, that statutory context includes the general proscription that the Authority is to conduct its review based on the review material that was before the delegate (without new information, per s.473DB) unless the criteria for getting and/or consideration of new information at ss.473DC and/or 473DD are met.
In my view, the Authority’s conclusions as to what was likely to happen to the Applicant on return from Sri Lanka were reasonably open and available to it to make on the country information that was before it. Again, the significance of the findings as to the Applicant’s profile were pertinent to that conclusion. The findings as to the Applicant’s profile were not unreasonable nor has the Applicant sought to challenge those findings before the Court. Having determined that the Applicant’s profile was not such as to attract attention of the Sri Lankan authorities, the conclusion of remote risk and no greater risk than any other returning asylum seeker upon return was logical and reasonable.
To the extent that this third ground relied on the failure to get and/or consider the 2017 DFAT Report, as has already been observed, the Applicant could not have put the updated 2017 DFAT Report to the Authority (or, before then, the delegate as to feature in the review materials) because the updated report had not come into existence at those times. Nonetheless, there was no obligation on the Authority to get and/or consider this new information pursuant to the procedural proscriptions at ss.473DC and 473DD. And, in the months that followed and preceded the delivery of the Reasons, the Applicant did not bring the 2017 DFAT Report to the Authority’s attention. In my view, when proper regard is had to the statutory context, the Authority’s failure to get and/or consider the 2017 DFAT Report was arguably not ideal but not legally unreasonable within the meaning of the authorities. In any event, and however suboptimal, as considered at Ground 1, such failure was immaterial to the outcome in the Applicant’s case.
It was not unreasonable, on the materials that were before the Authority, to reject the Applicant’s claims subject of this ground and particular (a). Nor were the Authority’s findings in this respect findings that no reasonable decision maker could have made.
Resolution of Ground 3
For the reasons above, the third ground is not made out.
Conclusion
For the foregoing reasons, the amended application should be dismissed with costs in accordance with the scale for final hearing in the amount of $7,853, and for the further interlocutory hearing in the amount of $3,731, with costs totalling $11,584.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 15 February 2023
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